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J U D G E M E N T
The Plaintiff
by his writ of summons issued on
3rd November 2004
claimed the following:
a.
A
declaration that Plaintiff is
the lawful owner of H/No.
3/120/19 Odorkor, Accra.
b.
A
declaration that the purported
attachment and subsequent sale
of H/No. 3/120/19 Odokor, Accra
at a public auction on 30/8/04
to satisfy judgement taken
against 1st Defendant
is null, void and of no legal
effect since the said house does
not belong to the Judgement
Debtor in suit number C
292/2002.
c.
A
further declaration that the
purported purchase by the 3rd
and 4th Dependants of
the said H/No. 3/120/19 Odorkor,
Accra at a public auction of
30/8/04 or thereabout does not
confer any title on them since
the said house does not belong
to the Judgement – Debtor in
suit to C 292/2002.
d.
An
Order setting aside the public
auction held on 30/8/04 or
thereabout at which H/No.
3/120/19 Odorkor, Accra was sold
to the 3rd and 4th
Defendants.
e.
An
order for the recovery of vacant
possession of H/No. 3/120/19
Odorkor, Accra from the 3rd
and 4th Defendants or
anyone in possession thereof.
f.
General damages and cost.
The statement
of claim which accompanied the
writ was to the effect that
H/No. 3/120/19 Odorkor, Accra
belong to the Plaintiff but he
allowed his senior sister, the 1st
Defendant and her children to
live in whilst he lived outside
Ghana. He later heard that his
house had been sold to satisfy
judgement debt obtained by the 2nd
defendant against the 1st
defendant. That it was the 3rd
and 4th defendants
who bought it and therefore
wants his house back.
The 2nd,
3rd and 4th
defendants who contested the
suit all denied that the house
in dispute belonged to the
plaintiff at the time of sale.
They however did not state in
their pleading who owned the
house before its sale.
In support of
his ownership to the house, the
plaintiff led evidence that he
became the owner of the house in
1982. He tendered exhibits ‘A’
which is the building permit,
which was issued on 23rd
November, 1983 but applied for
on 29th June, 1983
and exhibit ‘B’ the Land Title
Certificate dated 29th
June, 1992.
Counsel for 2nd
defendant argued that the
building permit exhibit ‘A’ does
not relate to the house in issue
because the name on it is
Stephen K. Oduro, and the
signature on it is also not his
as it differed from his
signature on an affidavit
counsel filed on 7th
March, 2006. Counsel also
argued that Exhibit ‘A’ was
applied for on 29th
June 1983 and issued on 23rd
November, 1983.
Exhibit ‘A’
was admitted without objection.
Defence counsel did not also
cross-examine on the name or
signature. The affidavit that
defence counsel is comparing the
signature on Exhibit ‘A’ with
was also not tendered.
Not having
cross examined on the contents
of Exhibit ‘A’ and not putting
forward any person claiming the
house, the defendants cannot
contradict the contents now –
reference to Ghana Ports and
Harbours Authority & Captain
Zeim vrs Nova Complex Ltd.
(2007-08) SCGLR 806 and Takoradi
Flour Mills vrs Samir Faris
(2005-06) SCGLR 882 where the
Supreme Court held that “where
the evidence led by a party is
not challenged by his opponent
in cross examination and the
opponent does not tender
evidence to the contrary, the
facts deposed to in that
evidence are deemed to have been
admitted by the opponent and
must be accepted by the trial
court.
It is also
not uncommon that in this
country, especially in Accra,
many houses are built without
building plans. In this case,
even though the plaintiff gave
the date of his ownership to be
1982, he applied for the
building permit in June 1983. A
closer examination of exhibit
‘A’ shows the address to be ℅
Mensah Boamah. The signature
also looks like Boamah. If
plaintiff had been cross
examined on it, he might have
explained the circumstances
leading to the production of
exhibit ‘A’.
Again, whilst
the plaintiff was under cross
examination with regard to the
name of the 1st
defendant, who is his sister, he
admitted that she sometimes used
Agnes Achiaa and sometimes,
Agnes Peprah even though her
late husband was called Mr. Osei
Assibey. The plaintiff using
the name Stephen Oduro or
Stephen K. Oduro will not make
Exhibit ‘A’ not referable to
him, especially as nobody has
claimed ownership to the house
prior to the auction sale. I
therefore hold that Exhibit ‘A’
is referable to the plaintiff.
Exhibit ‘B’
which is the land title
certificate is in the name of
the plaintiff. The 2nd
defendant counsel challenged it
on the ground that the plan
attached is dated 08-09-92. The
2nd defendant has
however not been able to produce
any documentary evidence of
proof of title of the 1st
defendant. Exhibit 5 and 5A
tendered by the 2nd
defendant is the result of a
search conducted by 2nd
defendant’s counsel.
Since
exhibits B, 5 and 5A are
official records and Exhibit ‘B’
has not been set aside, on the
authority of Ghana Ports and
Harbours Authority & Captain
Zeim vrs Nova Complex Ltd
(2007-08) S.C.G.LR 806, I accept
Exhibit ‘B’ as proof of the
Plaintiffs title, since in that
suit, the Supreme Court held
that “the common law rule of
presumption “ ‘Omnia
Praesumuntur rite et solenmiter
esse acta’ which has gained
statutory recognition under
Section 37(1) of the Evidence
Act, 1975 (N.R.C.D 323)
providing that “It is presumed
that an official duty has been
regularly performed applies not
only to official, judicial and
government Acts, but also to
duties required by law…”
Since exhibit
‘B’ is a certificate under Land
Title Registration law, it
created a right in the house,
the subject matter of dispute
and this right under Section
43(1) - (4) and Section 48 of
the Land Title Registration Law,
shall be indefeasible and shall
be held by the proprietor
together with all privileges and
appurtenances attaching thereto
free from all other interests
and claim whatsoever. An
indefeasible title meant a
complete answer to all adverse
claims on mere production of the
certificate. Reference: Brown
vrs Quarshigah (2003-04) SCGLR
930 holding 4.
The question
is “Was the 2nd
defendant justified in applying
for the sale of the house in
dispute?”
The evidence
before me shows that the 2nd
defendant had no legal evidence
in attaching that house. She
could have conducted a search at
both Lands Commission
Secretariat and Land Title
Registry to inquire about the
ownership before applying for
the attachment. Exhibit 1 was
conducted at Lands Commission on
19th July 2005 after
the sale of the house and
issuance of this writ.
It did not
disclose that the house belonged
to 1st defendant.
Exhibits 5 and 5A which is an
application for a search and
search report conducted
respectively on 30th
November 2007 and 14th
December 2007, at the Land Title
Registry revealed that the house
in dispute belongs to the
plaintiff since 29th
June 1992.
If this
search had been conducted before
the sale, she would have known
that the house did not belong to
the 1st defendant.
Again, there
is exhibit G2 which is the
valuation report on the sale of
the house. At page 8 of exhibit
G2, it was stated that “Document
on the property was not readily
available for our study both at
the time of the inspection and
preparation of the report. We
therefore invoke the principle
of “CAVEAT EMPTOR” and
accordingly advise any
interested party to investigate
title…”
The 3rd
and 4th defendants
should have investigated before
buying considering exhibit ‘G2’.
There is no evidence that the 3rd
and 4th defendants
conducted any search to
ascertain the ownership to the
house before buying.
Since the
contesting defendants have not
been able to prove that House
number 3/120/19, Odorkor, Accra
is the property of the 1st
defendant, but the Plaintiff has
been able to prove that the
house belongs to him. I hold
that the 3rd and 4th
defendants bought nothing at the
auction sale.
In Lamptey
vrs Hammond (1987-88) 1GLR 327,
the court of Appeal held in its
holding 4 that since at the
auction sale the defendant
bought the right title and
interest of the judgement debtor
in the disputed house, but the
judgement debtor had no title to
the house the defendant bought
nothing.
I, therefore
declare that the Plaintiff is
the lawful owner of House No.
3/120/19, Odorkor, Accra, and
that the sale of that house No.
3/120/19 to the 3rd
and 4th defendants is
null, void and of no legal
effect; and conferred no title
in them.
The
certificate of purchase issued
pursuant to the public auction
held on 30/08/04 or thereabout,
in respect of House Number
3/120/19, Odorkor, Accra is
cancelled.
The plaintiff
is given recovery of possession
of the said house.
The plaintiff
did not prove any damage caused
to him, since he was not living
in the house, but his sister the
1st defendant was, he
has lost nothing, I therefore
dismiss the claim for damages.
Cost of GH¢1,000.00
is awarded against the 2nd
defendant who attached the house
and GH¢500.00against the 3rd
and 4th defendants
for disputing the plaintiff’s
title when they had failed to
conduct a search even though
they were asked to do so.
Counsel: Mr.
Wisdom Antonio for Plaintiff
Mr. Samuel Henry
Cudjoe for 2nd
Defendant
Mr. Opoku Adjei for 3rd
and 4th Defendants
(SGD) MR S. H. OCRAN J.
JUSTICE OF THE HIGH
COURT
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